Tuesday, July 5, 2016

Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania

In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute.  This year the program, in its 19th year, will take place on July 21-22.  It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event.  Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida.  He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.

Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level.  The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars." 

I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues.   So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.

Here is a link to pricing and registration information.  Just two weeks away!

 

July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Nursing Home Resident Abuse-Who is the Perpetrator?

We know anyone can be a victim of elder abuse. We also know anyone can be a perpetrator. With that in mind, the results of a study published in the Annals of Internal Medicine might be surprising to you.... or not.  The study found that in about 20% of the cases, the perpetrator was another resident. The Prevalence of Resident-to-Resident Elder Mistreatment in Nursing HomesResident-to-Resident Elder Mistreatment in Nursing Homes explained that "[r]esident-to-resident elder mistreatment (R-REM) in nursing homes can cause physical and psychological injury and death, yet its prevalence remains unknown."  The full article requires a subscription but the summary available offers this information:

Results: 407 of 2011 residents experienced at least 1 R-REM event; the total 1-month prevalence was 20.2% (95% CI, 18.1% to 22.5%). The most common forms were verbal (9.1% [CI, 7.7% to 10.8%]), other (such as invasion of privacy or menacing gestures) (5.3% [CI, 4.4% to 6.4%]), physical (5.2% [CI, 4.1% to 6.5%]), and sexual (0.6% [CI, 0.3% to 1.1%]). Several clinical and contextual factors (for example, lower versus severe levels of cognitive impairment, residing on a dementia unit, and higher nurse aide caseload) were associated with higher estimated rates of R-REM...

Conclusion: R-REM in nursing homes is highly prevalent. Verbal R-REM is most common, but physical mistreatment also occurs frequently. Because R-REM can cause injury or death, strategies are urgently needed to better understand its causes so that prevention strategies can be developed.

There was a webinar on the topic earlier in the spring. Slides from the webinar are available here. There is also an abstract from the 2014 report available on the National Criminal Justice Reference Service and the report is here.

July 5, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care | Permalink | Comments (0)

Friday, July 1, 2016

A Senior "Airbnb" of Sorts?

The success of Airbnb and other types of vacation home sharing services seems to be particularly useful to a certain segment of the population (here's a hint-this is the elder law prof  blog). The New York Times ran an article about elders renting rooms in their homes through these vacation home sharing services.  Renting Rooms to Travelers Can Be a Source of Income Later in Life explains how this has become a source of income for some elders. In fact, "Airbnb, in a 2015 study, identified people over 60 as the fastest-growing cohort of its hosts, increasing by 102 percent that year, compared to its overall growth rate in the United States of 85 percent. Worldwide, the company estimates that about 260,000 of its roughly two million listings are offered by hosts 60 and older. Of those, 64 percent are women. (The company doesn’t track marital status.)" The article mentions the various businesses that offer this service and gives a sense of how they work.

Of course, there are pros and cons to opening up one's home to strangers, as the article notes, as well as some upfront costs to prepare one's home for "guests." For some, according to the article, renting out rooms provides a nice additional income.  Interesting concept.

July 1, 2016 in Consumer Information, Current Affairs, Housing | Permalink | Comments (1)

Thursday, June 30, 2016

Saving Medicare $ by Raising Eligibility Age?

Traditional Medicare Versus Private Insurance: How Spending, Volume, And Price Change At Age Sixty-Five , an article published in Health Affairs, discusses one topic that we hear periodically-that is, raising the age of Medicare eligibility from 65 to 67. The abstract explains:

To slow the growth of Medicare spending, some policy makers have advocated raising the Medicare eligibility age from the current sixty-five years to sixty-seven years. For the majority of affected adults, this would delay entry into Medicare and increase the time they are covered by private insurance. Despite its policy importance, little is known about how such a change would affect national health care spending, which is the sum of health care spending for all consumers and payers—including governments. We examined how spending differed between Medicare and private insurance using longitudinal data on imaging and procedures for a national cohort of individuals who switched from private insurance to Medicare at age sixty-five. Using a regression discontinuity design, we found that spending fell by $38.56 per beneficiary per quarter—or 32.4 percent—upon entry into Medicare at age sixty-five. In contrast, we found no changes in the volume of services at age sixty-five. For the previously insured, entry into Medicare led to a large drop in spending driven by lower provider prices, which may reflect Medicare’s purchasing power as a large insurer. These findings imply that increasing the Medicare eligibility age may raise national health care spending by replacing Medicare coverage with private insurance, which pays higher provider prices than Medicare does.

A subscription is required to access the full article.

June 30, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Wednesday, June 29, 2016

More on Observation Status

Last week Kaiser Health News (KHN) ran an update about Medicare's Observation Status, reminding readers that the requirements of the NOTICE Act go into effect on August 6, 2016.  Medicare Releases Draft Proposal For Patient Observation Notice explains that CMS has asked for comments on the draft notice it created for hospitals to use to explain observation status to patients. One expert quoted in the KHN article "said the notice is written for a 12th-grade reading level, even though most consumer materials aim for no more than an eighth-grade level. It 'assumes some health insurance knowledge that we are fairly certain most people don’t have.'" Others interviewed for the article expressed concerns about the draft of the notice and whether it goes far enough.  A sample of the draft notice can be viewed in the article. The comment period closed on June 17, 2016 and the article notes that the final CMS notice isn't expected until shortly before the law becomes effective.

June 29, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (1)

Monday, June 27, 2016

Retirement Advisors and the Fiduciary Standard

Do retirement advisors have to comply with the fiduciary standard when giving clients advice? If you said yes, you'd be right in line with what most folks think. After all, isn't your financial advisory giving you advice about your retirement investments? The New York Times article, Isn’t Honesty the Best Policy? explores this issue.

"The Department of Labor has been working since 2010 to hold everyone who provides financial retirement advice to this standard. After multiple public comment periods and significant consultation with industry leaders, consumer advocates and other experts, the department published a final rule that went into effect this week but provides the industry with a realistic transition period."  But not all are on board with using the fiduciary standard for financial advisors. So there was lobbying and action in Congress. "Their lobbying worked. Republican majorities in the House and Senate pushed through a bill to block the Department of Labor’s rule. On Wednesday, President Obama rightly vetoed it."

But that isn't the end of it. "[T]he Chamber of Commerce and other industry groups are trying a different route. Using similar arguments they made when lobbying Congress, they filed a last-ditch lawsuit in United States District Court for the Northern District of Texas ... to prevent the rule from being enforced." The lawsuit claims that it creates an "unwarranted burden[]" but the author of the article responds to that point: "I almost can’t believe this even needs to be said, but it’s not unwarranted to burden retirement advisers with a requirement that they act in their clients’ best interest."

According to the article, the opposition of the regulations may be speaking from both sides of their mouths, because "[w]hile financial executives complained to the Department of Labor that the rule was “immensely burdensome” and “very difficult” to comply with, they were telling investors on Wall Street that they “don’t see it as a significant hurdle” and that efficiently complying with the rule could provide a competitive edge in the market."

"If the fiduciary standard is good enough for medical care, legal advice and accounting, it is good enough for financial retirement advice. We don’t accept less anywhere else in commerce. Why should we accept it from those we trust to protect our retirement savings?"

Ask your advisor about the advisor's compliance with the fiduciary standard. It's important.

June 27, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Retirement | Permalink | Comments (0)

Sunday, June 26, 2016

Medicare Appeals

The GAO issued a new report on improving the Medicare Appeals process for original Medicare.  Medicare Fee-For-Service: Opportunities Remain to Improve Appeals Process  was released on June 9, 2016.

Here is what the GAO found:

The appeals process for Medicare fee-for-service (FFS) claims consists of four administrative levels of review within the Department of Health and Human Services (HHS), and a fifth level in which appeals are reviewed by federal courts. Appeals are generally reviewed by each level sequentially, as appellants may appeal a decision to the next level depending on the prior outcome. Under the administrative process, separate appeals bodies review appeals and issue decisions under time limits established by law, which can vary by level. From fiscal years 2010 and 2014, the total number of filed appeals at Levels 1 through 4 of Medicare's FFS appeals process increased significantly but varied by level. Level 3 experienced the largest rate of increase in appeals—from 41,733 to 432,534 appeals (936 percent)—during this period. A significant portion of the increase was driven by appeals of hospital and other inpatient stays, which increased from 12,938 to 275,791 appeals (over 2,000 percent) at Level 3. HHS attributed the growth in appeals to its increased program integrity efforts and a greater propensity of providers to appeal claims, among other things. GAO also found that the number of appeal decisions issued after statutory time frames generally increased during this time, with the largest increase in and largest proportion of late decisions occurring at appeal Levels 3 and 4. For example, in fiscal year 2014, 96 percent of Level 3 decisions were issued after the general 90-day statutory time frame for Level 3.

The Centers for Medicare & Medicaid Services (CMS) and two other components within HHS that are part of the Medicare appeals process use data collected in three appeal data systems—such as the date when the appeal was filed, the type of service or claim appealed, and the length of time taken to issue appeal decisions—to monitor the Medicare appeals process. However, these systems do not collect other data that HHS agencies could use to monitor important appeal trends, such as information related to the reasons for Level 3 decisions and the actual amount of Medicare reimbursement at issue. GAO also found variation in how appeals bodies record decisions across the three systems, including the use of different categories to track the type of Medicare service at issue in the appeal. Absent more complete and consistent appeals data, HHS's ability to monitor emerging trends in appeals is limited and is inconsistent with federal internal control standards that require agencies to run and control agency operations using relevant, reliable, and timely information.

HHS agencies have taken several actions aimed at reducing the total number of Medicare appeals filed and the current appeals backlog. For example, in 2014, CMS agreed to pay a portion of the payable amount for certain denied hospital claims on the condition that pending appeals associated with those claims were withdrawn and rights to future appeals of them waived. However, despite this and other actions taken by HHS agencies, the Medicare appeals backlog continues to grow at a rate that outpaces the adjudication process and will likely persist. Further, HHS efforts do not address inefficiencies regarding the way appeals of certain repetitious claims—such as claims for monthly oxygen equipment rentals—are adjudicated, which is inconsistent with federal internal control standards. Under the current process, if the initial claim is reversed in favor of the appellant, the decision generally cannot be applied to the other related claims. As a result, more appeals must go through the appeals process.

The GAO recommended:

To reduce the number of Medicare appeals and to strengthen oversight of the Medicare FFS appeals process, we recommend that the Secretary of Health and Human Services take the following four actions:

1. Direct CMS, OMHA, or DAB to modify the various Medicare appeals data systems to

a. collect information on the reasons for appeal decisions at Level 3;

b. capture the amount, or an estimate, of Medicare allowed charges at stake in appeals in MAS and MODACTS; and

c. collect consistent data across systems, including appeal categories and appeal decisions across MAS and MODACTS.

2. Implement a more efficient way to adjudicate certain repetitive claims, such as by permitting appeals bodies to reopen and resolve appeals.

 A pdf of the full report is available here.

 

June 26, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Friday, June 24, 2016

When "Good Enough" Is Not Good Enough At All

Our friend, GW Law Professor Naomi Cahn, has shared with us a recent essay by her long-time friend, Cindy Schweich Handler, who writes of the death of her mother-in-law.  This essay presents an important counterpoint to the lawsuit that Becky Morgan reports on today for our Blog, about a California lawsuit that attempts to challenge California's physician-assisted suicide law.

Ms. Handler writes with sensitivity -- and disagreement -- about the decision, at age 86, of her mother-in-law to end her own life:

Ellen is dying the way she lived: actively, with a lot of input. At 86, like so many of her contemporaries, she suffers from multiple maladies: a slow-growing leukemia called CLL; a recent mini-stroke; spinal stenosis that pains her legs and numbs her hands; recurring bouts of intestinal distress that leave her dehydrated and housebound. The ailments are awful and life-disrupting, but none of them are finishing her off. She doesn’t want to acclimate herself to wheelchairs, live-in aides and other affronts to her independent self-image. What she wants is to not treat her symptoms, to voluntarily stop eating and drinking, and to die.

 

While her pronouncement that she’s “had a good run” has left Harry and me sidelined with shock, our eldest son, Ted, understands....

 

Ted finds Ellen an excellent palliative-care doctor near her New Jersey retirement community who consults with the two of them for hours, making sure the patient isn’t suffering from a temporary, treatable depression. The doctor conference-calls with Harry and his two siblings, and they affirm that they all want what she wants. The Do Not Resuscitate and more detailed Physician Orders for Life-Sustaining Treatment forms are filled out and displayed prominently on her dining room table. Jennifer, who has experience in these situations, is available, and she can be at Ellen’s side 24/7. Everything is in place.

 

Then, a complication: Ellen’s independent living community prohibits outside aides from working there. For my mother-in-law to die in a hotel or apartment rented for the occasion is unthinkable to me. Harry and I are empty-nesters, with a third-floor suite that’s quiet and private. It makes sense that she should die in the guest room above our bedroom.

Although Ms. Handler and her husband provide Ellen her last place of hospice and palliative care, Ms. Handler doesn't embrace Ellen's plan:

What I don’t understand, why I have such a powerful case of cognitive dissonance, is her timing. Her retirement-home friends always remark on how she holds court in the dining hall after meals. Neat stacks of the Economist top her end table. She goes on field trips to museums, sees movies before I do. Surely she wants to stick around to see more graduations, or at least to find out what happens with the whole Donald Trump thing.

She suggests Ellen has more "good-enough years" left in her.   But, as the essay explains, good enough is not good enough for a woman of Ellen's steely strength and approach to life.

For the full account, I recommend "I didn't like it, but this was the death she chose," from the Washington Post. Thank you, Naomi, for sharing this timely essay, and to  Ms. Handler for her own emotional strength in writing it.  The comments appearing on the Washington Post website are also important reading. 

June 24, 2016 in Current Affairs, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0)

Thursday, June 23, 2016

Challenge to California's Aid-in-Dying Law

I don't think we should be surprised to learn that a lawsuit has been filed, challenging California's aid-in-dying law that became effective earlier this month. The LA Times reported on June 9, 2016 that a suit had been filed.  Opponents Sue to Overturn California's New Aid-in-Dying Law explains that two organizations and some individual doctors filed the suit and claim that the law is unconstitutional,"argu[ing] that California’s law is a civil rights violation, stripping terminally ill patients of protections afforded to other Californians." The article notes that the judge assigned to the case denied a TRO but a hearing on the plaintiffs' motion for a preliminary injunction will be held in late June. 

 

June 23, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0)

Wednesday, June 22, 2016

Social Security & Medicare Trustees 2016 Reports Released

It's that time of the year! The Social Security Trustees and the Medicare Trustees released their 2016 reports.  There is always a lot of information in these reports, but what everyone wants to know is when these programs are "running out" of money. According to the Social Security Trustees 2016 report, the SSDI and Retirement funds (combined) are "good" through 2034, although individually the SSDI fund isn't as robust, with its solvency at risk in 2023. 

Here is an excerpt from the summary:

The Bipartisan Budget Act of 2015 was projected to postpone the depletion of Social Security Disability Insurance (DI) Trust Fund by six years, to 2022 from 2016, largely by temporarily reallocating a portion of the payroll tax rate from the Old Age and Survivors Insurance (OASI) Trust Fund to the DI Trust Fund. The effect of updated programmatic, demographic and economic data extends the DI Trust Fund reserve depletion date by an additional year, to the third quarter of 2023, in this year's report. While legislation is needed to address all of Social Security's financial imbalances, the need remains most pressing with respect to the program's disability insurance component.

The OASI and DI trust funds are by law separate entities. However, to summarize overall Social Security finances, the Trustees have traditionally emphasized the financial status of the hypothetical combined trust funds for OASI and DI. The combined funds satisfy the Trustees' test of short-range (ten-year) close actuarial balance. The Trustees project that the combined fund asset reserves at the beginning of each year will exceed that year's projected cost through 2028. However, the funds fail the test of long-range close actuarial balance.

The Trustees project that the combined trust funds will be depleted in 2034, the same year projected in last year's report....

As far as Medicare, the Trustees report solvency through 2028. Here are two excerpts from the Trustees Report (in Section II.A.)

Short-Range Results

The estimated depletion date for the HI trust fund is 2028, 2 years earlier than in last year’s report. As in past years, the Trustees have determined that the fund is not adequately financed over the next 10 years. HI tax income and expenditures are projected to be lower than last year’s estimates, mostly due to lower CPI assumptions. The impact on expenditures is mitigated by lower productivity increases.

Looking at the separate programs Part A (HI) and Part B (SMI) the picture for SMI is a bit better

The SMI trust fund is adequately financed over the next 10 years and beyond because premium income and general revenue income for Parts B and D are reset each year to cover expected costs and ensure a reserve for Part B contingencies. A hold-harmless provision restricts Part B premium increases for most beneficiaries in 2016; however, the Bipartisan Budget Act of 2015 requires a transfer of funds from the general fund to cover the premium income that is lost in 2016 as a result of the provision. In 2017 there may be a substantial increase in the Part B premium rate for some beneficiaries. (See sections II.F and III.C for further details.) ...

 

June 22, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Retirement, Social Security | Permalink | Comments (1)

Good News on the Alzheimer's Front?

Two recent articles made me think that progress is being made in the fight against Alzheimer's.  First I ran into an article in the Chicago Tribune on May 25, 2016 from a Harvard Health Blog postDecline in Dementia Rate Offers 'Cautious Hope' details a recent report from the New England Journal of Medicine (NEJM), Incidence of Dementia over Three Decades in the Framingham Heart Study which we blogged about on February 23, 2016. After discussing the study and its results, the article turns to the question of whether dementia can be prevented:

As the Alzheimer's Association predicts, the numbers of people with dementia may ultimately increase simply because people are living longer. At the same time, the Framingham researchers offer "cautious hope that some cases of dementia may be prevented or at least delayed."

The Framingham results bolster the notion that what's good for the heart is good for the head. If you're pursuing a heart-healthy lifestyle -- following a Mediterranean-style diet, getting the equivalent of 150 minutes of moderate exercise a week, managing your stress, and engaging with friends and family -- you're likely lowering your risk of dementia in the bargain, too.

The other article also ran on May 25, 2016, this one in the New York Times.  It posits an intriguing question: Could Alzheimer’s Stem From Infections? It Makes Sense, Experts SayThe article references a recent study by Harvard researchers,  Amyloid-β peptide protects against microbial infection in mouse and worm models of Alzheimer’s disease the results of which was published in Science Translational Medicine. The abstract is available here but the full article requires registration.

Here is how the study results are explained in the Times article

The Harvard researchers report a scenario seemingly out of science fiction. A virus, fungus or bacterium gets into the brain, passing through a membrane — the blood-brain barrier — that becomes leaky as people age. The brain’s defense system rushes in to stop the invader by making a sticky cage out of proteins, called beta amyloid. The microbe, like a fly in a spider web, becomes trapped in the cage and dies. What is left behind is the cage — a plaque that is the hallmark of Alzheimer’s.

The article provides a fascinating recap of how the researchers got to this point and notes that "[r]ecent data suggests that the incidence of dementia is decreasing. It could be because of better control of blood pressure and cholesterol levels, staving off ministrokes that can cause dementia. But could a decline in infections also be part of the picture?" The article concludes describing the next steps in this research.

So, good news on the Alzheimer's front? You decide. (I vote yes).

June 22, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0)

Tuesday, June 21, 2016

New Concepts from Authorities Who Investigate and Prosecute Scammers and Financial Abusers

On June 15,  I logged into the National Consumer Law Center's webinar on Financial Frauds and Scams Against Elders.  It was very good.  Both David Kirkman, who is with the Consumer Protection Division for North Carolina Department of Justice, and Naomi Karp, who is with the federal Consumer Financial Protection Bureau, had the latest information on scamming trends, enforcement issues, and best practices to avoid financial exploitation.  Here were some of the "take away" messages I heard:

  • "Age 78" -- why might that be important?  Apparently many of the organized scammers, such as the off-shore sweepstakes and lottery scams, know that by the time the average consumer reaches the age 78, there a significant chance that the consumer will have cognitive changes that make him or her more susceptible to the scammer's "pitch."  As David explained, based on 5 years of enforcement data from North Carolina, "mild cognitive impairment"  creates the "happy hunting ground" for the scammer.
  • "I make 'em feel like they are Somebody again."  That's how one scammer explained and rationalized his approach to older adults.  By offering them that chance to make "the deal," to invest in theoretically profitable ventures, to be engaged in important financial transactions, he's making them feel important once again.  That "reaction" by the older  consumer also complicates efforts to terminate the scamming relationship. David played a brief excerpt of an interview with an older woman, who once confronted with the reality of a so-called Jamaican sweepstakes lottery, seemed to make a firm promise "not to send any more money."  Yet, three days later, she sent off another $800, and lost a total of some $92k to the scammers in two years.
  • "Psychological reactives."   That's what David described as a phenomenon that can occur where the victim of the scam continues to play into the scam because the scammer is offering the victim praise and validation, while a family member or law enforcement official trying to dissuade the victim from continuing with the scam makes him or her feel "at fault" or "foolish."   An indirect, oblique approach may be necessary to help the victim understand.  One strategy to offset the unhelpful psychological reaction was to show the victim how he or she may help others to avoid serious financial losses. 
  • "Financial Institutions are increasingly part of the solution."  According to Naomi, about half of all states now mandate reporting of suspected financial abuse, either by making banks and credit unions mandatory reporters or  by making "all individuals" who suspect such fraud mandatory reporters.  Both David and Naomi said they are starting to see real results from mandatory reporters who have helped to thwart fraudsters and thereby have prevented additional losses.

The federal Consumer Financial Protection Bureau has several publications that offer educational materials to targeted audiences about financial abuse.  One example was the CFPB's 44-page manual for assisted living and nursing facilities, titled "Protecting Residents from Financial Exploitation." 

June 21, 2016 in Books, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (2)

Estate Planning Lessons from the Redstone Saga?

We've previously blogged about the happenings in the case and life of Sumner Redstone. Although one lawsuit was dismissed, it doesn't appear that is the end of the matter. The New York Times ran an article on June 2, 2016, In Sumner Redstone Affair, His Decline Upends Estate Planning. Although the focus of the story is Mr. Redstone's situation, the story notes that this happens perhaps more than we think.

As Americans live longer and more families are forced to cope with common late-in-life issues like dementia, the problem is getting worse. “It’s a huge issue nationally as the elderly population grows and their minds start to falter,” [one attorney interviewed for the story] said. “I’ve seen charities coming after people for multiple gifts: Sometimes these donors don’t remember that they already gave the previous week. Romantic partners, caregivers who take advantage of the elderly — we’re seeing it all.”

Elderly people may be especially susceptible to the influence of people who happen to be around them during their waning days.

Professor David English (full disclosure, co-author and friend) "a professor of trusts and estates at the University of Missouri School of Law and former chairman of the American Bar Association’s commission on law and aging" said

This is an issue for lots of people of even modest wealth... [and] the most common approach is the creation of a trust, either revocable (which means it can later be changed) or irrevocable, that anticipates such a problem and defines what the creator of the trust means by incapacity. This could be a much less rigorous standard than is typically applied by courts... The document should define the meaning of incapacity and, more importantly, indicate who determines incapacity....

The article goes on to examine the importance of trusts that are carefully well-drafted to address issues such as those faced in this case.  However, "sometimes no amount of legal advice can save people from an unwillingness to face their own mortality and cede control while still in full control of their faculties."

June 21, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management | Permalink | Comments (0)

Sunday, June 19, 2016

More on Technology

It seems every few days (or maybe even more frequently) there is a story about a new tech device that can benefit elders. Here are a few that caught my eye (and I must confess I want each of them)

1. The personal care robot. Asus a few weeks back announced their robot, Zenbo. This entry into the personal robot field is a talking robot.  Although not yet available, seems reasonably priced and has an "elder tech" application:

A big part of the pitch is caring for the elderly, which could be especially popular in nearby Japan, which is struggling with an aging population. Zenbo "helps to bridge the digital divide between generations" by allowing seniors to make video calls and use social networking with simple voice commands, Asus said.

It can also connect to a smart bracelet and alert relatives via smartphone app if their elderly relative has a fall.

A video of the robot in action is available here.

2.  Self-driving cars. I saw a June 5, 2016 On Assignment episode on self-driving cars, Hands Off,  that was quite interesting. When looking for that episode on the web, I ran into this June 5, 2016 article on Forbes about self-driving cars. Consumer Interest In Self-Driving Cars Increasing reports on a recent study regarding self-driving cars, noting that more folks are becoming aware of the technology. So will self-driving cars have an elder-tech application?   The respondents in the study thought this

Big Benefit for the Physically Impaired and Elderly There is a strong belief that a part of the population who will benefit most from self-driving cars are people who are physically impaired. About 70% of the respondents believe autonomous vehicles will provide on-demand mobility for the elderly and handicapped.

I think we can all imagine how self-driving cars have an "elder-tech" application but unlike a car driven by a human, I'm pretty sure the autonomous vehicles won't be able to help the elder in or out of the vehicle, or load her packages. (Maybe that will be in the next iteration...)  That doesn't mean I don't want one!

3. Smart Homes: Then there is this on the "smart home" front (I want one of those as well). With the changes in leadership at Nest, the Washington Post ran this article Why smart homes are still so dumb.  One thought from the article that struck me is the high-tech v. low-tech hurdle.  A survey reported in the story mentioned that some folks thought it too difficult to get everything set up when the low tech alternative is so much easier (think flipping on a light switch easy). 

4. More on wearables:  5 ways wearables will transform the lives of the elderly covers wearables that focus on, among other things, safety, wandering and falls.

The next few years promise to provide incredible advancements in elder tech world. But there is still an irreplaceable value from human interactions.

June 19, 2016 in Consumer Information, Current Affairs, Web/Tech | Permalink | Comments (1)

Friday, June 17, 2016

Bifocal: Examining Less Restrictive Alternatives to Guardianships

The ABA's Bifocal publication includes a new resource guide designed to help lawyers identify and help to implement decision-making options for persons with disabilities that are less restrictive than guardianships.  

The "PRACTICAL Tool," with the first word intended to serve as an acronym for nine steps that a lawyer can use to identify legal and practical approaches, includes:

  • Presume guardianship is not needed
  • clearly identify the Reasons for concern;
  • Ask if a triggering concern may be temporary;
  • determining whether the concerns can be addressed by Community resources;
  • ask if the person already has a Team to help make decisions;
  • Identify the person's abilities;
  • screen for potential Challenges;
  • Appoint a legal support consistent with the person's values; and
  • Limit any necessary guardianship petition. 

For more, read Resource for Lawyers Targets Options Less Restrictive than Guardianship, Bifocal, the Journal of the ABA Commission on Law and Aging, Volume 37, Issue 5. 

June 17, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, State Statutes/Regulations | Permalink | Comments (0)

Thursday, June 16, 2016

Caring for the Caregivers

Georgia Public Broadcasting ran a story recently on caring for family caregivers.  Who Cares for Family Caregivers ran on May 23, 2016. The story explains an institute in Savannah, Ga. that is focused on helping the family caregivers, including training.  The story focuses on several family caregiver's stories and notes that there is a bill pending "before the U.S. Senate would offer some help to caregivers. Under the measure they would qualify for up to $3,000 in tax credits."  A video of the story is also available with the transcript.

The website for the institute featured in the story offers a caregiver stress level self-assessment quiz and a caregiver questionnaire for those looking for training as well as other caregiver resources.

June 16, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0)

A Window on a "Small" Case of Exploitation in New York

A recent court decision in New York details the extraordinary efforts made by an individual to take advantage of a former co-worker as she aged and became affected by dementia.  One of the tools of abuse was a Power of Attorney, dated 2010, that he reportedly used as his authority to isolate her from family members.  The court found that he  was able to then manipulate her as he controlled her finances, having the woman sign checks he later claimed were "gifts," for purposes such as to "defray costs of his visit to France to see his daughter," "to help him buy a house in Normandy," or to cover "the costs of his art exhibit in Paris."  Ultimately, the court concluded that the respondent/defendant, who under New York law was in the role of fiduciary as an appointed agent, could not satisfy his burden of proof to show the alleged gifts were free from undue influence.  

The trial level court entered an order finding him liable for $122,000 plus costs and interest, and restraining him from "transferring, using, spending or hypothecating any of his assets" until the judgment was paid.  See Matter of Mitchell, 2016 NY Slip Opinion 50853(U), decided June 3, 2016 by the New York Supreme court, Kings County.  

That is the "befriender" side of the issues.  However, the court also addressed the possibility of a will executed in 2013.  The discussion of the will brings into play the role of an attorney who was called by the defendant to testify at the hearing on the gift transactions, apparently in an attempt to bolster his arguments about the woman's capacity.  That plan backfired.

The way it all plays out through the testimony, as recounted by the judge in his opinion, raises important questions about what could or should the lawyer have done differently.  

The court wrote:

Continue reading

June 16, 2016 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases | Permalink | Comments (0)

Wednesday, June 15, 2016

Elder Tech: A Report to the President

We've blogged on a number of occasions about the "elder tech revolution" and the technology competency of elders.  We're not the only ones watching this issue. In fact, the President's Council of Advisors on Science and Technology issued a report to the President in March of this year. Report to the President Independence, Technology and Connection in Older Age is a detailed look at various issues and technologies.  The executive summary sets the stage

The U.S. population is getting older, and Americans are living longer, on average, than they ever have before. As they age, people are healthier and more active than the generations before them and have fewer functional limitations such as difficulty walking or blindness. Studies show that people are happier on average as they advance into their later decades and enjoy high levels of accumulated knowledge and experience.

Getting older is a time of social, emotional, mental, and physical change. Retirement might change how a person interacts socially every day, affecting a person’s mood and well-being. Cognitive aging—the normal process of cognitive change as a person gets older—can begin, or a permanent change in physical function may arise. Technology offers a path for people who are navigating these changes potentially to prevent or minimize the risks associated with them and to enhance people’s ability to live their lives fully. We, the President’s Council of Advisors on Science and Technology (PCAST), sought to identify technologies and policies that will maximize the independence, productivity, and engagement of Americans in their later years.

 

The Committee focused on 4 areas of aging: physical and cognitive changes, hearing loss and lack of social interaction. The report contains "cross-cutting recommendations" as well as area-specific recommendations. The cross-cutting recommendations include federal support and coordination, widespread internet access, adoption of monitoring technology, and encouraging research to develop more innovation. There are 12 area-specific recommendations.

The blog post about the report is available here.

 

June 15, 2016 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, Web/Tech | Permalink | Comments (0)

Nebraska Mandates Protection for Health Care Whistleblowers

In a recent McKnight's News column, Registered Nurse Pam McKnally wrote an interesting and candid account of "What It's Like to Be a Nurse Whistleblower."  Her experiences with retaliation  -- indeed bullying-- after she complied with laws requiring to her report observations of improper use of narcotics in the workplace led her and others to advocate for changes in the law.

In April 2016, in response to the experiences of McKnally and others, Nebraska enacted changes to state law, prohibiting retaliation against whistleblowers and mandating confidentiality for the identities of anyone making reports of violations by "credentialed" health care providers. Nebraska Legislative Bill 750, amending Nebraska's law that governs a broad range of health care providers, specifies:

An individual or a business credentialed pursuant to the Uniform Credentialing Act shall not discriminate or retaliate against any person who has initiated or participated in the making of a report under the act to the department of [health and human services].  Such person may maintain an action for any type of relief, including injunctive and declaratory relief, permitted by law. 

Further, the law now provides that "The identity of any person making such a report [of suspected violations] or providing information leading to the making of a report shall be confidential" and further, "The identify of any person making a report, providing information leading to the making of a report, or otherwise providing information to the department, a board, or the Attorney General included in such reports, complaints or investigational records shall be confidential whether or not the record of the investigation becomes a public record."

Whether the changes to Nebraska law, especially in the absence of a specific statutory sanction for retaliation or breach of confidentiality, will be effective to address the backlash experienced by McNally will bear monitoring.  She cautions:

I resigned, as my work life was intolerable, and it was clear that I was about to get fired. The EOC investigated my claims. The costs in employee hours and attorney fees, plus fines for violations can be astronomical. Had the situation been handled differently by the Human Resource department, the outcome may have been much different.

 

It is time for employers to stop blaming and discrediting professionals who simply follow the law and advocate for themselves and their patients....

 

When nurses are happy they work hard. They are loyal and seek out constructive ways to help their organization deal with conflict. In long-term care, Medicare and Medicaid cuts mean money needs to be saved now more than ever. Keeping a business viable includes mitigating the need for attorneys and dealing with nurse turnover.

June 15, 2016 in Crimes, Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, June 14, 2016

Improving the Rep Payee Program

Justice in Aging's June, 2016 issue brief focuses on needed improvements to Social Security's Representative Payee program. How SSA Can Improve the Representative Payee Program to Protect Vulnerable Seniors explains the rep payee program, details steps SSA has taken to improve the program and makes recommendations generally as well as to specific parts of the rep payee program.  General recommendations to improve the program overall include 

Prepare for the increased need for representative payees by developing methods to recruit and retain eligible representative payees.

Provide more in-depth training, support, and resources for representative payees and field office personnel.

Promote the use of the supported decision making model to ensure that the capability determination process and resulting appointments promote autonomy and financial independence for as long as possible.

Ensure that third party monitoring and oversight of representative payees includes the appropriate level of oversight and protects older adults from financial abuse.

Specific portions of the program that are studied include the capability determination process, monitoring and oversight,  actions against a misbehaving rep payee, monitoring of direct deposits, training rep payees and identifying those beneficiaries who need rep payees. The report concludes "[g]iven the history of misuse and lack of oversight within the program, SSA must make necessary reforms to prevent repetition of the often dehumanizing instances of fraud and misuse of funds."

 

 

 

June 14, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Social Security | Permalink | Comments (0)